Criminal Law (Forensic Procedures) Amendment Bill: Secretariat of Police presentation

Meeting report

The Secretariat of Police provided an overview of the Criminal Law (Forensic Procedures) Amendment Bill and its provisions. Members were not taken through the Bill clause by clause. The delegation was composed of Ms Jenni Irish-Quobosheane, Secretary of Police, and Major-General Philip Jacobs, Acting Divisional Commissioner: Legal Services: The State Law Advisor’s Office was represented by Ms Carin Booyse, Deputy Chief State Law Advisor, Mr Theo Hercules, Principal State Law Advisor, and Ms Desiree Swartz, Senior State Law Advisor.

Ms Jenni Irish-Quobosheane, Secretary of Police, explained that the Criminal Law (Forensic Procedures) Amendment Bill was a Justice bill. The South African Police Service (SAPS) was in charge of its implementation only. Ms Jenni-Irish Quobosheane said that there was a need to strengthen the investigative powers and capacity of the SAPS.

Gaps in respect of the collection, storage and use of fingerprint evidence had been identified. There was no functional link between the SAPS Automated Fingerprint Identification System (AFIS) system, the Department of Transport’s Electronic National Traffic Information System (E-NATIS) system and the Department of Home Affairs’ National Identification System (HANIS) HANIS system. There was no obligation in law to take fingerprints either in respect of serious offences or criminal convictions. 

The Bill was intended to provide SAPS with access to other fingerprint databases for criminal investigations and to take and retain fingerprints and biometric materials. This would have several advantages. An expanded fingerprint capacity was an important intelligence tool in respect of crimes such as property crimes with a low detection rate. Plea bargains increased when solid evidence such as fingerprint evidence could be produced. Fingerprints were important in bail applications. Fingerprints could serve to prove guilt as well as innocence.

The initial idea was also to provide in the Bill for the establishment, administration and use of a DNA-database. It was then decided that the DNA database would be phased in as a second bill. The decision had been made by the Portfolio Committee on Police. Phase 1 would deal with fingerprints and body-prints whilst Phase 2 would deal with e the DNA database. The Bill before the Committee dealt with Phase 1.

The Bill provided for powers of the police to take fingerprints of accused and convicted persons. It also made it compulsory to take fingerprints of, amongst others, persons arrested and convicted of Schedule 1 offences; persons who were released on bail; persons upon whom summons in respect of Schedule 1 had been served; persons convicted by a court and sentenced to a term of imprisonment without the option of a fine, irrespective of suspension thereof; and persons convicted in respect of offences listed in the Gazette by the Minister of Justice. Furthermore fingerprints might be taken from any person arrested upon any charge or who paid an admission of guilt fine in respect of offences listed in the Gazette by the Minister of Justice.

The Bill further provided for the storing of fingerprints on a database maintained by the National Commissioner; the retaking of fingerprints, the storing and retaining of fingerprints, subject to the provisions of the Children’s Act; and the destruction of fingerprints in the case of an acquittal or non-prosecution of an accused and destruction of fingerprints upon receipt of a Certificate of Expungement from the Director-General of Justice.

For any abuse of fingerprints or manipulation or tampering therewith the Bill provided for imprisonment to a maximum of 15 years, without the option of a fine.

Provision was made to take fingerprints without a warrant in respect of offences in terms of Schedule 1 of the Act where any person in a group could have committed an offence in order to include or exclude a person as a suspect. The measures in respect of the abuse, retention keeping and use of fingerprints were applicable to this category as well. (There were already similar provisions in the Firearms Control Act, and the Explosives Act.)

Section 37 was amended to provide for subjecting body prints, and photographic images to a comparative search, the retention thereof and the destruction in line with what was described above.

Sections 212 and 215 of the Act were amended in respect of the provision of evidence by means of a certificate, and the admissibility of evidence, respectively, mainly consequential amendments as a result of other amendments to the Act.

 The South African Police Service Act was amended to deal with the storage and use of fingerprints, body-prints and photographic images of persons. (Provision was in particular made for the safeguarding and security of the database).

 Consequential amendments are made to the Firearms Control Act and the Explosives Act as a result of the amendments in the Bill.

With regard to consultations, most of the comments received from the public upon invitation dealt with the Bill before it was split, in other words with the DNA issues.

The Bill was amended by the Portfolio Committee on Police to align it with the Children's’ Act, both in respect of the manner in which fingerprints and body-prints are taken and the destruction of fingerprints and body-prints. (Fingerprints taken from a child must be taken having due regard to the privacy, dignity and bodily integrity of the child, it must be taken in a private area not in view of the public, the parent, guardian or social worker must be present when fingerprints were taken, and the child must be treated and addressed in a manner taking into account the child’s gender and age).

The Portfolio Committee on Police had interacted intensively with the respective role-players, including the Departments in the Criminal Justice Cluster on issues of implementation and financial implications.
The Portfolio Committee on Police had also received a presentation from the Interdepartmental Team chaired by the Office for Criminal Justice System Reform and the Integrated Justice System Board.

The Bill would be implemented incrementally taking into account the challenges regarding connectivity of the different systems between the Departments. Both the Departments of Justice and Police were involved in the drafting process and the State Law Advisers assisted with the splitting of the Bill.

The National Commissioner of Police had to ensure that proper training took place on the collection of fingerprints.

Discussion
Mr A Watson (DA, Mpumalanga) referred to the limitations of the SAPS AFIS system and asked what its scope was. How may fingerprints were in the database? He asked for explanations regarding body prints and biometric materials. Would a new bill be required for the DNA section?

Ms Jenni-Irish Quobosheane stated that the number of fingerprints on the SAPS AFIS system changed on a daily basis. The number as at today would be forwarded to the Committee. Body prints referred to prints of other body parts other than fingerprints. It however excluded genitalia, buttocks and breasts.

Mr D Bloem (COPE, Free State) asked what happened to the Johnny de Lange document. Was it part of the Bill or was the Bill something new altogether. He asked what was the issue was regarding the taking of finger prints. When SAPS arrested a person finger prints were taken. What was meant by the statement made that SAPS could not take finger prints? He asked for an explanation.  

Ms Irish-Quobosheane said that the Bill was part of the process that Johnny de Lange started. It was not separate but rather a continuation of that process. She explained that the Bill required that certain persons’ fingerprints had to be removed. Persons found not guilty and whose record had been expunged had to have their fingerprints removed within 30 days. When a child perpetrator reached adulthood, application could be made for the removal of fingerprints within 30 days. SAPS might at present take fingerprints. However the Bill made it obligatory for SAPS to take fingerprints.

Mr A Matila (ANC, Gauteng) asked why the Committee was being engaged at the tail end of the Bill. He said that the Johannesburg Metro Police were using motor vehicle registration plate scanning. How were various technologies and activities by police agencies co-ordinated? At present communication was not that good. The Committee was at a disadvantage regarding the Bill. Members needed to have a better understanding of the Bill. The Portfolio Committee on the other hand had benefited from various inputs on the Bill.

Ms Irish-Quobosheane responded that the involvement by the Committee on the Bill was a Parliamentary issue. The Bill was a Justice bill. The Committee would however be more involved on the Civilian Secretariat Bill. The scanning of number plates was used by metro police to check on outstanding fines. SAPS were involved in the process. SAPS had piloted the project and it was initially used to pick up stolen vehicles. Metro police was not covered in the Bill. The National Commissioner of Police did play a role over metro police. There were discussions to tighten up different police agencies.

Mr B Nesi (ANC, EC) said that the Bill provided for the storing of fingerprints as well as for the destruction of fingerprints where an accused was acquitted. He asked what the need to destroy fingerprints was. The Bill also provided for imprisonment to a maximum of 15 years without imprisonment for any abuse, manipulation or tampering of fingerprints. Why was there a need for retaking fingerprints? He felt the Bill to be too liberal. The 15 years imprisonment should also apply to persons perhaps purposefully misplacing fingerprints. The situation was different where the fingerprints were misplaced by mistake but even then there should be strict rules. Mistakes should not be made as persons should be adequately trained. 

Ms Irish-Quobosheane noted that the 15 years imprisonment sanction was to prevent for the abuse of the fingerprint database. The tightening up of disciplinary procedures in SAPS was being considered. Where fingerprints were misplaced by mistake the Bill had to provide for the retaking of fingerprints. Training was crucial and there was a huge emphasis on it in the Bill.

Major-General Jacobs explained that fingerprints had to be destroyed. Precedents had been set in a human rights case that was heard in the European Union. From a constitutional point of view fingerprints had to be destroyed in certain cases.

Mr M Mokgobi (ANC, Limpopo) was disappointed that the Committee was asked to make inputs on the Bill at its conclusive stage. Why was the Committee not part of the process at the developing stage? The Committee needed to make inputs on the Bill. He referred to the incremental implementation of the Bill and said there was a challenge of connecting different systems. The Bill should have taken into consideration the integration of different departments. Implementation of the Bill could thus be problematic. SAPS consisted of many departments. How did departments communicate with one another? He asked if, for example, SAPS picked up a child who was a foreigner off the street, how the provisions of the Bill would apply in such an instance.

Ms Irish-Quobosheane responded there were already discussions between the three affected departments on the implementation of the Bill. There was not to be a single database of fingerprints but to have all three. The fact that the Department of Transport did not take fingerprints of all the fingers of a person was something that needed to be addressed. The Bill did provide that if a child did not have a parent or guardian present during fingerprinting a social worker should be present.  

Mr Bloem felt that there was duplication on the taking of fingerprints. The police firstly took your fingerprints when you were arrested. When you were found guilty in court it was taken again. When you entered prison it was taken for a third time.

Major-General Jacobs said that fingerprints were taken repeatedly in order to make sure that there was proper identification.

Mr Watson responded that the destruction of a person’s fingerprints were destroyed because he was found not guilty did not preclude the retaining of the fingerprints on the other two databases. He felt that the instances where the Minister could make determinations as to when fingerprints could be taken should be listed in the regulations. It must be expressly listed.

Ms Irish-Quobosheane said that SAPS could use the other two databases only to verify fingerprints for criminal purposes. The databases held by the Departments of Home Affairs and Transport were different from the database for fingerprints being held on a criminal system.

Mr Watson said that, if the aim was to build a database of fingerprints, why fingerprints from the criminal system could not be transferred to a generic database.

Ms Irish-Quobosheane responded that doing so would elicit human rights problems. She reiterated what Mr Jacobs had said about the European Union case and the constitutional issues that might arise.

Mr Bloem asked if the fingerprints of foreigners who were convicted of crimes were also going to be destroyed.

Ms Irish-Quobosheane stated that only persons who were found not guilty and whose records were expunged would have their fingerprints destroyed. The Department of Home Affairs did have 2 million fingerprints from foreigners.

Mr Nesi asked that, when a person was acquitted, how soon afterwards his fingerprints would be destroyed.

Ms Irish-Quobosheane responded that they would be destroyed within 30 days.

Mr Nesi said the problem was where persons were repeat offenders and appeared in court often for similar crimes. There would be no linkages as the fingerprints would be already destroyed. The magistrate would not be aware that the person had appeared in court before. He felt the 30 day period to be too short. Why could fingerprints not be kept for at least 3 or 5 years?
 
Ms Irish-Quobosheane reiterated that destroying the fingerprints was in line with the Constitution. Keeping those fingerprints in the criminal records database would be regarded as unconstitutional. The Portfolio Committee had felt strongly over the issue and said that 30 days was long enough.
Retaking of fingerprints was allowed where the fingerprints could not be read. Retaking should not be an accepted practice but legislation was needed on the need for retaking.

Mr Bloem said that the Committee would come up with its own amendments for the Bill. The Committee was not obliged to accept the 30 day period suggested by the Portfolio Committee. The Committee might feel that three months was more appropriate.

The meeting was adjourned.